IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 94-20513
_____________________
IVEY V. MYERS,
Petitioner-Appellant,
versus
GARY L. JOHNSON, Director, TDCJ,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
February 22, 1996
Before KING, DEMOSS, and STEWART, Circuit Judges.
PER CURIAM:
In Myers v. Collins, 8 F.3d 249 (5th Cir. 1993), we reversed
the district court's judgment denying Myers's habeas corpus
petition and we remanded to the district court for an evidentiary
hearing on whether Myers had abandoned his right to file a pro se
brief on direct appeal. Upon remand and following an evidentiary
hearing, the district court again denied Myers's petition for
habeas corpus, finding that although Myers had not abandoned his
right to self-representation on direct appeal, the denial of his
right to self-representation was harmless error. Myers appeals
the judgment of the district court.
I. BACKGROUND
Ivey V. Myers ("Myers") is currently serving a twenty-five-
year term of imprisonment in the custody of the Texas Department
of Criminal Justice for an aggravated robbery conviction.
Following his conviction, Myers asked the state district court to
allow him to represent himself on appeal. The state court
granted his request, but informed Myers that standby counsel
would be appointed to assist Myers. Instead, the state court
appointed Janet Morrow ("Morrow") as appellate counsel for Myers,
without indicating to her that she was appointed as standby
counsel for a pro se appeal. After the record was compiled,
Morrow filed an appellate brief on Myers's behalf, alleging
ineffective assistance of trial counsel and requesting that the
judgment be reformed to reflect that Myers had only one, not two,
previous convictions. Myers asked Morrow for a copy of the
transcript, so that he could file a pro se brief, but she failed
to provide him with the record. The Texas Fourteenth Court of
Appeals affirmed Myers's conviction and reformed the judgment as
requested in Morrow's brief. Morrow then filed a petition for
discretionary review on Myers's behalf which the Texas Court of
Criminal Appeals refused without opinion.
On June 29, 1989, Myers filed a federal habeas corpus
petition in the district court, alleging the following:
(1) his Fourteenth Amendment right to due process was
violated by:
(a) the inclusion of several aliases in the
indictment which prejudiced the jury,
(b) his in-court identification which was
prompted by the prosecutor,
2
(c) his identification in an out-of-court
photo spread,
(d) the victim's conflicting testimony to the
jury and the police, and
(e) perjury committed by the police
investigator and the reporting officer;
(2) his Sixth and Fourteenth Amendment rights to self-
representation at trial and on appeal were violated;
(3) his trial counsel rendered ineffective assistance;
and
(4) the evidence was insufficient to sustain his conviction.
The district court dismissed the petition on December 19, 1989,
holding that Myers had not exhausted his state remedies. On
December 28, 1990, this court vacated the judgment of the
district court and remanded for consideration of the merits of
Myers's petition.
On remand, the state filed a motion to dismiss on grounds
that "sufficient evidence supported Myers's conviction, that
Myers's due process rights were not violated, that Myers's
counsel was not constitutionally ineffective and that there was
no error in any alleged denial of Myers's right to represent
himself." On October 1, 1991, the district court granted the
state's motion, treating it as a motion for summary judgment, and
denied Myers's petition for habeas relief.
On appeal from the district court's denial of habeas relief,
this court addressed the question whether Myers had been denied
his federal constitutional right to represent himself on direct
appeal of his conviction. The court determined that "a state
criminal defendant has a constitutional right to present pro se
motions and briefs on appeal." Myers v. Collins, 8 F.3d 249, 252
3
(5th Cir. 1993).1 However, the court concluded that a genuine
issue of material fact existed regarding whether Myers had
abandoned his right of self-representation. Id. Thus, the court
remanded for an evidentiary hearing on the abandonment issue.
Id.
Following the evidentiary hearing, the magistrate judge
entered recommended findings of fact and conclusions of law. The
magistrate judge concluded that Myers was denied his right of
self-representation on the first appeal as of right and
recommended that the writ be conditionally granted unless the
Texas Court of Appeals allowed Myers an out-of-time pro se appeal
on the issue of insufficiency of the evidence--the issue not
raised by Morrow, his appellate counsel. In response to the
state's objections, the magistrate judge amended her report.
Although the magistrate judge still found that Myers had not
waived or abandoned his right of self-representation, the
magistrate judge concluded that Myers had not demonstrated
"substantial and injurious effect from Morrow's appellate brief,"
applying the harmless error standard set out for trial errors in
Brecht v. Abramson, 113 S. Ct. 1710, 1716 (1993). The district
court adopted the magistrate judge's amended report and
1
In Myers, the court recognized that arguably its
holding constituted a "new rule" which federal courts are usually
barred from announcing in a habeas corpus case by Teague v. Lane,
489 U.S. 288 (1989). Myers, 8 F.3d at 252 n.7. However, because
neither party had raised the Teague issue, the court declined to
do so sua sponte. Id.
4
recommendation on June 14, 1994 and denied Myers's petition for
habeas corpus. Myers filed a notice of appeal on July 12, 1994.
II. STANDARD OF REVIEW
In reviewing requests for federal habeas corpus relief, we
review the district court's findings of fact for clear error, but
review issues of law de novo. Dison v. Whitley, 20 F.3d 185, 186
(5th Cir. 1994). A finding of fact is clearly erroneous when,
although there is enough evidence to support it, the reviewing
court is left with a firm and definite conviction that a mistake
has been committed. United States v. United States Gypsum Co.,
333 U.S. 364, 395 (1948); Henderson v. Belknap (In re Henderson),
18 F.3d 1305, 1307 (5th Cir. 1994), cert. denied, 115 S. Ct. 573.
If the district court's account of the evidence is plausible in
light of the record viewed in its entirety, the court of appeals
may not reverse it even though convinced that, had it been
sitting as the trier of fact, it would have weighed the evidence
differently. Anderson v. City of Bessemer City, 470 U.S. 564,
573-74 (1985).
III. DISCUSSION
This appeal presents us with three questions. First, we
must determine whether the district court's determination that
Myers did not abandon his right of self-representation on direct
appeal is clearly erroneous. Second, we must decide whether a
state criminal defendant's constitutional right to present pro se
5
briefs on the first appeal as of right is amenable to harmless
error analysis, applying the standards set forth in Arizona v.
Fulminante, 499 U.S. 279 (1991). Third, if we decide that
harmless error analysis applies, we must then determine whether
the denial of the right of self-representation was harmless error
in this case. Before we reach these questions, however, we will
first discuss the existence and scope of the right to self-
representation on the first direct appeal.
A. THE RIGHT TO SELF-REPRESENTATION ON DIRECT APPEAL
1. Existence of the Right
The Sixth Amendment to the United States Constitution
guarantees every criminal defendant the right to the assistance
of counsel at trial. Gideon v. Wainwright, 372 U.S. 335, 345
(1963). Implicit in the Sixth Amendment also is the correlative
right of a criminal defendant to waive the assistance of counsel
and represent himself at trial. Faretta v. California, 422 U.S.
806, 819 (1975). Additionally, a criminal defendant has a
constitutional right, derived from the Fourteenth Amendment
guarantees of due process and equal protection, to the effective
assistance of counsel on the first direct appeal from his
conviction. Evitts v. Lucey, 469 U.S. 387, 396 (1985) ; Douglas
v. California, 372 U.S. 353, 357 (1963).
In Price v. Johnston, 334 U.S. 266 (1948), the Supreme Court
stated that "a prisoner has no absolute right to argue his own
appeal or even to be present at the proceedings in an appellate
6
court." Id. at 285. However, this court, distinguishing between
the right to present oral argument--which Price determined was
not "an essential ingredient of due process," id. at 286--and the
right to present appellate briefs and motions, and following the
Eighth Circuit's decision in Chamberlain v. Ericksen, 744 F.2d
628 (8th Cir. 1984) cert. denied, 470 U.S. 1008 (1985), held that
"a state criminal defendant has a constitutional right to present
pro se briefs and motions on appeal." Myers, 8 F.3d at 252.2
2. Standby Counsel, Abandonment and Waiver
Because we have so recently recognized the right to present
pro se briefs on the first appeal as of right, we have not yet
delineated the manner in which this right must be exercised.
Thus, we look to the Supreme Court's decisions in Faretta and
McKaskle v. Wiggins, 465 U.S. 168 (1984), addressing the right of
self-representation at trial, for guidance in determining the
scope of the appellate right to self-representation. In
asserting the right of self-representation at trial, first a
criminal defendant must knowingly and intelligently waive the
right to counsel. Faretta, 422 U.S. at 835. Additionally, a
trial court should advise a defendant asserting the right to
self-representation of the dangers and disadvantages of foregoing
the assistance of counsel before the court accepts his waiver.
Id. "[A] State may--even over objection by the accused--appoint
2
We note that the state of Texas has recognized the
right of a defendant to self-representation on appeal (although
denying his right to present oral argument). Webb v. State, 533
S.W.2d 780, 784 (Tex. Crim. App. 1976).
7
a `standby counsel' to aid the accused if and when the accused
requests help . . . ." Id. at 835 n.6.
McKaskle v. Wiggins addressed "[the] role standby counsel
who is present at trial over the defendant's objection may play
consistent with the protection of the defendant's Faretta
rights." 465 U.S. at 170. The McKaskle court established the
following limitations on the participation of stand-by counsel at
trial:
First, the pro se defendant is entitled to
preserve actual control over the case he chooses to
present to the jury. This is the core of the Faretta
right. If standby counsel's participation over the
defendant's objection effectively allows counsel to
make or substantially interfere with any significant
tactical decision, or to control the questioning of
witnesses, or to speak instead of the defendant on any
matter of importance, the Faretta right is eroded.
Second, participation by standby counsel without
the defendant's consent should not be allowed to
destroy the jury's perception that the defendant is
representing himself.
Id. at 178.
Additionally, McKaskle recognized that a criminal defendant
may abandon or waive his right to self-representation during the
criminal trial. Id. at 182. "A defendant's invitation to
counsel to participate in the trial obliterates any claim that
the participation in question deprived the defendant of control
over his own defense." Id. Once a pro se defendant invites or
acquiesces in substantial participation by standby counsel, even
if he insists that he is not waiving his Faretta rights, he
abandons his right to later complain that counsel interfered with
his presentation of his defense. Id.
8
Applying the reasoning of McKaskle to an appellate
situation, we hold that a criminal defendant who clearly and
unequivocally asserts his right to present pro se briefs on the
first direct appeal must be allowed to "preserve actual control
over the case he chooses to present" to the appellate court--
i.e., he must be allowed to determine the content of his
appellate brief. See McKaskle, 465 U.S. at 178. If standby
counsel substantially interferes with a pro se appellant's
presentation of his appeal--for example, by denying him access to
the transcript--the right to present pro se briefs on direct
appeal will be effectively denied. Of course, a criminal
appellant may abandon the right to present pro se briefs on
direct appeal, once asserted, by inviting or agreeing to standby
counsel's substantial participation in preparation of the brief.
See McKaskle, 465 U.S. at 182-83. Additionally, there is no
constitutional right to hybrid representation. See id. at 168.
Thus, when a criminal appellant accepts the assistance of
counsel, but later objects to his attorney's appeal strategy or
preparation of the brief, the criminal appellant cannot then
expect to be allowed to file a supplemental pro se brief. By
accepting the assistance of counsel the criminal appellant waives
his right to present pro se briefs on direct appeal.
9
In the present case, the district court3 found that Myers
clearly and unequivocally asserted his right to self-
representation on his first appeal as of right.4 The state trial
court, although it had orally assented to Myers's assertion of
his right, effectively denied that right by appointing Morrow as
appellate counsel for Myers. Additionally, the district court
found that Myers did not subsequently abandon his right to self-
representation on direct appeal. The state argues that the
district court's finding that Myers did not abandon his right to
self-representation is clearly erroneous because Myers did not
advise the state court of his dissatisfaction with Morrow's
3
The magistrate judge entered an amended report and
recommendation, including proposed findings of fact and
conclusions of law, which the district court adopted. For the
sake of simplicity, we will refer to the district court.
4
The district court found that "the official transcript
reflects that Myers requested and received permission to
represent himself on appeal," citing the following colloquy:
MYERS: I would like at this time to file my notice of
appeal.
THE COURT: Certainly, sir.
MYERS: I would like to also advise the Court that I'm
indigent and cannot afford an attorney nor could I
afford a transcript and would the Court provide me
these.
THE COURT: Certainly.
MYERS: As well as the right to be my own lawyer.
THE COURT: You want to be your own lawyer with no
assistance from a lawyer?
MYERS: This is what I asked the first time and also
asked the second time.
THE COURT: You may be your own lawyer, sir, but I think
I'll appoint someone to stand by in case you need some
assistance.
10
representation. The next section will address the district
court's findings and conclusions.
3. The District Court's Findings
The district court found the following facts:
Myers requested and received permission to represent himself
on appeal. Nevertheless, on December 18, 1986, Morrow was
appointed as Myers's counsel on appeal. The appointment form and
the official court docket reflected that Morrow's appointment was
standard; no mention was made that Myers had been granted the
right to represent himself or that Morrow's appointment was on a
standby basis. Myers testified at the evidentiary hearing that
the trial judge denied his request to represent himself. Morrow
testified that the state court did not inform her that her
appointment was as standby counsel, and that she would not have
accepted a standby appointment. She testified that, in March
1987, Myers wrote to her requesting a copy of the transcript and
advising her that she was representing him against his will. She
stated that he never told her that she was standby counsel, only
that he wished to file a pro se brief. Morrow did not take
requests from criminal defendants for copies of the transcript
seriously. On March 19, 1987, Morrow responded to Myers's
letter, informing him that she was representing him on the direct
appeal and that she would begin working on the brief as soon as
the record was complete. Morrow believed that she had been
appointed as appellate counsel. Myers testified that after
Morrow refused to send him the transcript, he felt it was useless
11
to object to the brief she had filed. In December 1987, Myers
filed a pro se petition for writ of mandamus before the Texas
Court of Criminal Appeals, complaining that the trial judge had
improperly denied his request to represent himself on appeal.
Based on these factual findings, the district court
concluded that Myers did not expressly, knowingly, and
intelligently waive his right to represent himself on direct
appeal. The district court determined that Myers had requested
and received permission to represent himself in the direct appeal
of his conviction, but that he believed that his request to
represent himself had been denied. This erroneous belief,
induced by the court's written order unconditionally appointing
Morrow on appeal, resulted in the denial of Myers's
constitutional right to represent himself. In answer to the
state's argument that Myers abandoned his right of self-
representation by failing to contact the state appellate court
and advise it that Morrow had taken over his appeal, the district
court stated:
The court agrees that Petitioner could have done more
to preserve his right to represent himself but cannot
agree that Myers abandoned his right to self-
representation under the particular facts of this case.
It is significant that it was the court's order which
undermined Petitioner's ability to represent himself,
not any action of Petitioner. Once counsel was
appointed, the court only communicated with counsel.
Because appellate counsel had been appointed,
Petitioner could not have obtained a copy of the
transcript which he had ordered or been allowed to file
his own brief. Based on the facts presented in this
case, the State has not shown by a preponderance of the
evidence that the Petitioner abandoned his right to
represent himself on appeal.
12
We agree with the district court's conclusion that Myers did
not abandon his right of self-representation on direct appeal.
Although it may be true that to best preserve his rights Myers
should have notified the state court that Morrow had taken over
his appeal, the district court's factual finding that Myers
believed that his request to be his own attorney had been denied
is not clearly erroneous. Myers's belief that the state court
had denied his request to represent himself is reasonable in
light of the state district court's actions in appointing Morrow
and Morrow's statement that she was representing him on appeal,
as well as her refusal to deliver a copy of the transcript to
Myers. This belief also explains why Myers failed to contact the
state court to protest Morrow's actions.
Furthermore, at no point did Myers's invite or agree to
Morrow's substantial participation in the prosecution of his
appeal. See McKaskle, 465 U.S. at 182. Rather, he informed
Morrow by letter that she was representing him against his will,
and he asked her for the transcript so that he could prepare a
pro se brief. Because Morrow was Myers's counsel of record,
Myers could not have obtained a copy of the transcript or filed a
brief with the appellate court directly; once counsel was
appointed, the court communicated only with counsel. Although
Myers did not object to the state trial or appellate courts, in
December 1987, Myers filed a petition for writ of mandamus before
the Texas Court of Criminal Appeals complaining that the trial
13
judge improperly denied his request to represent himself on
appeal.
Myers clearly and unequivocally asserted his right to
represent himself on his first direct appeal. The state district
court, after orally agreeing to this request, denied Myers's
right by appointing counsel to represent him. The record
supports the finding that Myers did not at any time invite or
agree to Morrow's participation in the appeal. Therefore, we
affirm the district court's finding that Myers did not abandon
his right to present pro se briefs and motions on his first
appeal as of right.
B. DOES HARMLESS ERROR ANALYSIS APPLY?
Having determined that the state court denied Myers's
constitutional right to represent himself on direct appeal, and
that Myers did not abandon or waive this right, we must now
address the question whether violation of a state criminal
defendant's constitutional right to present pro se briefs on the
first appeal as of right is amenable to harmless error analysis.5
The United States Supreme Court has determined that harmless
error analysis is appropriate for many types of constitutional
5
The state argues that because the source of the right
to present a pro se brief on direct appeal flows from Texas's
statutory grant of a right to an appeal as of right, the
statutory basis of the right compels a harmless error analysis.
Because this court held in Myers that the right to present pro se
briefs on direct appeal is a constitutional right, 8 F.3d at 252,
the state's argument is meritless.
14
violations. Chapman v. California, 386 U.S. 18, 22 (1967).
While application of the harmless error doctrine is the rule and
not the exception, see Rose v. Clark, 478 U.S. 570, 578 (1986),
some constitutional violations require automatic reversal
regardless of harm. Chapman, 386 U.S. at 23.
In Arizona v. Fulminante, the Supreme Court distinguished
the types of constitutional errors amenable to harmless error
analysis from those requiring automatic reversal by denominating
the former, "trial errors," and the latter, "structural defects."
499 U.S. 279, 307, 309 (1991). "Trial errors" are errors "which
occur[] during the presentation of the case to the jury." Id. at
307-08. Trial errors are subject to harmless error analysis
because they may be "quantitatively assessed in the context of
other evidence presented in order to determine whether [the
error] was harmless beyond a reasonable doubt."6 Id.
In contrast, the Court described those constitutional errors
which require automatic reversal as "structural defects in the
constitution of the trial mechanism." Id. at 309. Structural
errors affect "the framework within which the trial proceeds,
rather than simply an error in the trial process itself." Id. at
310. The total deprivation of the right to counsel at trial is a
6
In Brecht v. Abramson, 113 S. Ct. 1710 (1993), the Supreme
Court announced that the "harmless beyond a reasonable doubt"
standard would no longer apply to analysis of the effect of trial
error in a habeas corpus context. Id. at 1722. Rather, the new
standard for determining whether habeas relief must be granted
for trial error is whether the error "had substantial and
injurious effect or influence in determining the jury's verdict."
Id.
15
paradigmatic example of a structural constitutional error that
can never be harmless, as is the violation of the right to self-
representation at trial. Id. at 309; Chapman, 386 U.S. at 23,
n.8; McKaskle, 465 U.S. at 177 n.8. The denial of the right to
self-representation on direct appeal cannot be considered a
structural defect, because it has no effect on the criminal trial
itself. For similar reasons, the denial of the right to self-
representation on direct appeal also does not fit neatly in the
category of trial errors, because it does not occur during the
presentation of the case to the jury.
In McKaskle v. Wiggins, the Supreme Court determined that
the Faretta right to self-representation at trial was not
amenable to harmless error analysis, applying a rationale other
than the trial error/structural defect dichotomy:
Since the right of self-representation is a right that
when exercised usually increases the likelihood of a
trial outcome unfavorable to the defendant, its denial
is not amenable to "harmless error" analysis. The
right is either respected or denied; its deprivation
cannot be harmless.
McKaskle, 465 U.S. at 177 n.8.
Prior to the Supreme Court's decision in McKaskle, this
court had also recognized that "the nature of the right to defend
pro se renders the traditional harmless error doctrine peculiarly
inapposite." Chapman v. United States, 553 F.2d 886, 891 (5th
Cir. 1977). In Chapman, we recognized that the defendant's right
to represent himself is protected not "out of the belief that he
thereby stands a better chance of winning his case, but rather
out of deference to the axiomatic notion that each person is
16
ultimately responsible for choosing his own fate, including his
position before the law. A defendant has the moral right to
stand alone in his hour of trial and to embrace the consequences
of that course of action." Id.
The Second Circuit expanded on the Supreme Court's McKaskle
rationale and our reasoning in Chapman in reaching the conclusion
that denial of the right of self-representation cannot be
harmless:
The right to self-representation derives
principally from interests beyond ensuring that trial
outcomes are fair. The Sixth Amendment's right to
self-representation reflects values of individual
integrity, autonomy, and self-expression. Violation of
the right to self-representation sacrifices these
values even in the absence of effect on the outcome of
the trial.
Application of harmless error analysis is
particularly inappropriate to denial of the right to
self-representation because a harmless error standard
would, in practical effect, preclude vindication of the
right. Since seasoned appointed counsel can almost
invariably provide better legal representation that a
pro se defendant, denial of a request to proceed pro se
could rarely, if ever, be shown to have been
prejudicial.
Johnstone v. Kelly, 808 F.2d 214, 218 (2d Cir. 1986), cert.
denied, 482 U.S. 928 (1987).
We find that the reasons that harmless error analysis is
inappropriate for denial of the right to self-representation at
trial apply equally to the denial of the constitutional right to
present pro se briefs on the first appeal as of right.7 The
7
We recognize that the constitutional right to present
pro se briefs on direct appeal stands on different constitutional
footing than the right to self-representation at trial. See
Myers, 8 F.3d at 252 n.4. The Supreme Court determined that the
right to self-representation at trial is implicit in the
17
right to present pro se briefs on direct appeal, as the right to
self-representation at trial, arises from the fundamental belief
structure of the Sixth Amendment. Faretta, 422 U.S. at 821. The
right to self-representation at trial is thus the complement to
the Sixth Amendment right to the assistance of counsel at trial.
However, the Sixth Amendment does not protect the right to
counsel on appeal. Rather, if a right to appeal is granted by a
state, the Fourteenth Amendment Due Process and Equal Protection
Clauses demand that the effective assistance of retained or
appointed counsel on appeal also be provided. See Evitts v.
Lucey, 469 U.S. at 396. We may assume then that the
constitutional right to self-representation on direct appeal, as
the complement to the constitutional right to counsel on direct
appeal, is derived from the Fourteenth Amendment Due Process
guarantee. Therefore, while the right to self-representation at
trial is a Sixth Amendment right; the right to present pro se
briefs on direct appeal is a Due Process right.
Although determining the constitutional source of the right
to present pro se briefs on the first appeal as of right is an
important step in recognizing the right, whether the right is a
Sixth Amendment or a Due Process right does not affect the
determination of whether the right is amenable to harmless error
analysis. There are Sixth Amendment and Due Process rights the
violation of which constitute trial errors subject to harmless
error analysis. See Fulminante, 499 U.S. at 307 (citing, inter
alia, Delaware v. Van Arsdall, 475 U.S. 673 (1986) (restriction
on a defendant's right to cross-examine a witness for bias in
violation of the Sixth Amendment Confrontation Clause); Hopper v.
Evans, 456 U.S. 605 (1982) (statute improperly forbidding trial
court's giving a jury instruction on a lesser included offense in
a capital case in violation of the Due Process Clause); and
Coleman v. Alabama, 399 U.S. 1, 10-11 (1970) (denial of counsel
at a preliminary hearing in violation of the Sixth Amendment
Counsel Clause)). Similarly, there are Sixth Amendment and
Fourteenth Amendment rights the violations of which have been
held to be structural defects requiring automatic reversal. See
Fulminante, 499 U.S. at 309-10 (citing, inter alia, Vasquez v.
Hillery, 474 U.S. 254 (1986)(unlawful exclusion of members of the
defendant's race from a grand jury in violation of the Equal
Protection Clause); McKaskle v. Wiggins, 465 U.S. 168 (1984)
(denial of the Sixth Amendment right to self-representation at
trial); Gideon v. Wainwright, 372 U.S. 335 (1963) (total
deprivation of the Sixth Amendment right to counsel at trial);
and Tumey v. Ohio, 273 U.S. 510 (1927) (trial before a judge with
a financial interest in conviction in violation of the Due
Process Clause)). Therefore, the fact that the right to present
pro se briefs on the first appeal as of right is a Due Process
right does not affect our determination whether violation of the
right is amenable to harmless error analysis.
18
that a criminal defendant should not have counsel forced upon
him. See Myers, 8 F.3d at 252. Constitutional protection of the
right to represent oneself on direct appeal preserves the values
of individual autonomy and freedom of choice. See Faretta, 422
U.S. at 833-34 ("And whatever else may be said of those who wrote
the Bill of Rights, surely there can be no doubt that they
understood the inestimable worth of free choice."); Chapman, 553
F.2d at 891 ("[E]ach person is ultimately responsible for
choosing his own fate, including his position before the law.").
Violation of the right to present pro se briefs sacrifices these
values regardless of the effect of the violation on the outcome
of the appeal. See Johnstone, 808 F.2d at 218. The violation of
the constitutional right to self-representation on direct appeal,
limited to the right to present pro se briefs and motions, is not
amenable to harmless error analysis.8
Therefore, we cannot affirm the district court's judgment
denying Myers's petition for writ of habeas corpus because he
failed to show injurious effect from Morrow's brief or that his
pro se brief would have resulted in reversal of his conviction.
The denial of Myers's right to represent himself on direct appeal
is reversible error. However, the appropriate remedy is an
opportunity to present an out-of-time pro se appellate brief to
the state court of appeals. See Lombard v. Lynaugh, 868 F.2d
8
Because we determine that the constitutional right to
present pro se briefs on appeal is not amenable to harmless error
analysis, we do not reach our third question--whether the denial
of Myers's right to self-representation on appeal was harmless
error.
19
1475, 1484 (5th Cir. 1989) (determining that the appropriate
remedy for ineffective assistance of counsel on direct appeal was
a conditional grant of a writ of habeas corpus unless the state
court would grant the petitioner an out-of-time appeal); see also
Stubbs v. Leonardo, 973 F.2d 167, 169 (2d Cir. 1992) (granting
writ unless the state appellate court allows the filing of a pro
se brief). Thus, we order the district court to conditionally
grant Myers's petition for writ of habeas corpus unless the Texas
Fourteenth Court of Appeals allows Myers an opportunity to
present an out-of-time pro se appellate brief.
IV. CONCLUSION
Accordingly, we REVERSE the judgment of the district court,
and we REMAND to the district court with instructions to enter
judgment granting the writ of habeas corpus unless the state
affords Myers an opportunity to present an out-of-time pro se
appellate brief within such reasonable time as the district court
may fix.
REVERSED AND REMANDED.
20